UT professor to teach wind law class this semester.
If Texas’ wealth over the last century came from oil, wind farm developers are banking that a chunk of the state’s future prosperity will come from an above-ground resource.
The wide-open feel of the burgeoning industry, with windmills cropping up like wildflowers in the Panhandle, in West Texas, and along the Gulf Coast, harks back to the legal situation in the days of Spindletop.
“With wind law and the wind industry, what’s happening legally is about the same place the oil industry was 100 years ago,” said Ernest Smith, a University of Texas law professor who will teach a course in wind law this semester. “It’s virtually unregulated. People realize there’s great value to it, but there’s no precedents in case law and very little statutory help.”
But as windmills go in the ground, will regulation catch up?
Controversies over wind farms, especially those along the coast, have headed to the courthouse.
In Kenedy County, a motley crew of birders and the King Ranch are challenging two wind farms that they say will lead to the deaths of thousands of migratory birds.
Three cases filed in the past couple of years in Texas – one in Abilene and two in North Texas, where landowners organized the North Texas Wind Resistance Alliance – have tried unsuccessfully to stop wind farms on the grounds that they are loud or ugly or depress property values.
Wind law is “totally immature, and the problem is that major ecological impacts could occur,” said Jim Blackburn, a lawyer for the Coastal Habitat Alliance, the group opposing the Kenedy County wind farms.
“Texas has an open door; there are no regulations that apply to wind energy companies,” said Steven Thompson, a Houston lawyer who has represented rural landowners opposed to wind farms. In some cases, he said, rural areas have negotiated setbacks, space between the turbines and other landowners’ properties. But litigation has been largely ineffective, he said.
Wind developers say the industry is a clean and safe one, with few of the hazards associated with other kinds of power generation.
The state has little oversight over the construction of wind farms. The Electric Reliability Council of Texas, which operates the state’s power grid, determines whether a farm can hook up to the grid, said Dub Taylor, executive director of the State Energy Conservation Office.
In the most recent legislative session, a proposal by state Rep. Robert Puente, D-San Antonio, to set up a permitting process for wind farms failed to get out of the House Regulated Industries Committee.
Texas appears to be accelerating wind production. In July, the state’s Public Utility Commission designated swaths of the state for the construction of power lines that would carry wind-generated electricity to consumers. The decision served as a pledge that the state would help build those lines, giving wind power developers the confidence to build turbines in far-flung areas.
Not to be outdone, the state’s General Land Office has, on its Web site, promoted more than 26,000 acres of state land it oversees as prime wind farm sites.
Wind farms, like other alternative energy sources, have been broadly welcomed by environmental groups because they produce energy without emissions. And because there is an endless domestic supply of the resource and no need to mine the land, politicians have embraced wind power as an alternative to fossil fuels. Ranchers make money off royalties from wind farms on their land, much as they might with oil derricks.
Though most wind developers do environmental impact studies voluntarily and follow self-imposed industry standards, few state regulations exist, said Katharine Lusk, who owns AKL Windscouting, a Big Spring-based company that consults with landowners and developers to site wind farms.
She said more regulation will lead to fewer wind farms and “less electricity that’s clean and renewable.”
Theoretically, one wind farm could rob an adjacent farm of wind, said Mike Sloan, who leads Austin wind consulting company Virtus Energy.
“If you put something up in the air, it’s going to impact air flow, whether it’s a mountain, or a building, or a tree or a wind turbine,” he said. “It’s like sailboats that are racing: One of the boats will catch the wind that would otherwise go to the other boat’s sail.”
But practically speaking, he said, such a struggle over wind is unlikely because the farms would have to be very close together.
No jockeying between landowners has broken out yet in the West Texas town of McCamey, which calls itself the wind capital of Texas, Mayor Sherry Phillips said.
The Kenedy County projects, meanwhile, would amount to more than 600 windmills on about 60,000 acres. The farms may test federal migratory bird treaties and some parts of the law, including state nuisance laws, which can protect the rights of neighbors.
A wind turbine can stand taller than the Statue of Liberty, and its blades can go as fast as 220 mph. In August, the U.S. Fish and Wildlife Service warned Babcock & Brown, one of the Kenedy wind farm developers, that “the area of proposed development may be an important landfall area in the migratory route for many birds, which … include threatened and endangered species.”
Babcock & Brown project manager Ward Marshall said, “It’s impossible to build a wind farm anywhere in the U.S. without someone thinking it’s a bad idea.
“The first thing opponents will grab on to is an environmental issue: With coal plants, they hang their hat on air quality; with nuclear plants, they worry about a Chernobyl meltdown; and with wind farms, it’s a bird problem. That’s our albatross.”
By Asher Price
14 January 2008
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